USA v. Ferron

Filing 87

Initial Report and Recommendation, Memorandum Opinion

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA,
Plaintiff,
vs.
JOHN EMMANUEL FERRON,
Defendant.

Case No. 3:07-cr-00142-JWS-JDR
RECOMMENDATION
REGARDING
MOTION TO VACATE
PURSUANT TO 28 U.S.C. § 2255
Docket 53

Petitioner John Emmanuel Ferron filed a Motion to Vacate his sentence
pursuant to 28 U.S.C. § 2255 at Docket 53. Following appointment of counsel,
Ferron filed an Amended Petition, through counsel, at Docket 73. The Government
filed its Answer at Docket 74. The Court ordered counsel for Mr. Ferron to file a brief
regarding the retroactivity of Padilla v. Kentucky1 and the applicable statute of
limitations for the filing of his Petition.2 Petitioner filed his brief at Docket 84 and the
Government filed its Response at Docket 85. Neither party requested an evidentiary
1

130 S.Ct. 1473 (2010).

2

Minutes of the United States District Court, Docket 80.

hearing. The matter is now ripe for decision.
For the reasons stated below, the Magistrate Judge recommends the
Court DENY PETITIONER’S MOTION TO VACATE.
I.

Factual History

Mr. Ferron entered the United States illegally in December of 1972 after
traveling to the United States by ship from Jamaica.3 He was reported to the
government for his illegal entry and located in October of 1973. Some time after
October of 1973, but before December of 1974, Mr. Ferron illegally reentered the
United States and enlisted in the United States Navy under the name Clyde Steele.4
Mr. Ferron was honorably discharged from the military and began working for the
Merchant Marines.
Between 1992 and 2007, Mr. Ferron used the name Clyde Steele to,
among other things, apply for and receive loans, open bank accounts, obtain credit
cards, apply for a passport and apply for and receive public assistance and veterans
benefits.5 Throughout his life, Mr. Ferron also experienced mental health issues and
intermittently used illegal drugs.6
In 2007, Mr. Ferron was indicted in an 11-Count Indictment for crimes

3

Sentencing Recommendation, Docket 41-2, p. 5.

4

Id.

5

Id. at pp. 3-7.

6

Docket 41-2, pp. 22-23.

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relating to Identity Theft and Social Security and Passport Fraud.7 Mr. Ferron was
arrested on December 19, 2007, in California, had his initial appearance in the
Northern District of California on December 20, 2007, and was arraigned in
Anchorage on February 15, 2008.8

Following his arrest in December 2007,

Immigration and Customs (ICE) placed an immigration hold on the Defendant.9
Mr. Ferron entered into a plea agreement which encompassed the
crimes identified in the Indictment with the exception of Count 3, Passport Fraud,
which was dropped pursuant to the plea agreement.10
At the Change of Plea hearing, the Court inquired as to Mr. Ferron’s
competency. Dr. Aron Wolf, Psychiatrist, testified that the Defendant, though he had
mental health issues, he was able to understand the consequences of his plea
agreement, including that he was aware of the risk of deportation.11 The Court also
inquired as to whether Mr. Ferron was aware that his plea agreement would likely

7

Indictment, Docket 1.

8

Minutes of Arraignment on Indictment, Docket 12.

9

United States’ Answer to Defendant’s Amended Petition Under 28 U.S.C. §
2255, Docket 74, Exhibit 1.
10

Transcript of Proceedings, Proposed Change of Plea, Docket 67, tr. 19; and
see, Amended Petition, Docket 73, p. 1.
11

Docket 67, tr. 9.

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result in his deportation.12 Mr. Ferron acknowledged this fact.13
Mr. Ferron was sentenced pursuant to his plea agreement on March 26,
2009 to a term of 39 months.14 At the sentencing, Dr. Wolf testified again as to Mr.
Ferron’s mental state and his competency.15 Counsel for the Defendant, Sue Ellen
Tatter, gave the Defense’s sentencing recommendation, specifically recognizing that
the Defendant would inevitably be deported and that he is subject to ICE custody
upon release following his sentence.16 During his allouction, Mr. Ferron, himself,
recognized he would be deported following his sentence.17 And, the Court again
acknowledged that the Defendant would likely be deported as a consequence of his
plea.18
II.

Procedural History

Consistent with the terms waiving his right to appeal in his plea
agreement, Mr. Ferron did not file a direct appeal in his case. As such, his

12

Id. at tr. 25.

13

Id.

14

See Docket 73, p. 2.

15

Partial Transcript of Proceedings, Imposition of Sentence, Docket 68, tr. 5-

31.
16

Id. tr. 32.

17

Id. tr. 37.

18

Id. tr. 40-41.

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conviction became final no later than April 15, 2009.19 Following his release from the
Bureau of Prisons after his serving sentence in his federal criminal matter (including
credit for time served) on September 27 2010, Mr. Ferron was detained by ICE
pending deportation proceedings.20 He filed his § 2255 petition on October 7, 2010,
more than a year after his sentence became final.21
Consistent with 28 U.S.C. § 2255(f), a petitioner must file a motion to
vacate within one year after his conviction is made final. There are only a few
exceptions to this rule. One of the exceptions is contained in § 2255(f)(3) which
states that the limitations period shall run from “the date on which the right asserted
was initially recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable to cases on
collateral review.”
Here, Mr. Ferron argues that the Supreme Court’s decision in Padilla
applies to his case, that he was not properly advised as to the risk of deportation as

19

Docket 74, p. 3-4.

20

Id. at p. 2; Docket 74, Exhibit 4; Docket 74, p. 4. Both parties agree that
while the Defendant is no longer in Bureau of Prison custody, the fact that he is
being held pursuant to an ICE Detainer and is still on probation is sufficient to meet
the threshold requirements for custody in a 28 U.S.C. § 2255 petition. See Docket
84, pp. 1-2; Docket 85, p. 2; and, see U.S. v. Hurtado-Villa, Nos. CV-10-01814FJM(MHB), CR-08-01249-PHX-FJM, 2011 WL 4852284, p.2 (D.Ariz., Aug. 12, 2011)
(“. . . a federal defendant who is ‘subject to supervised release . . . is in ‘custody’
‘and therefore ‘may seek relief pursuant to 28 U.S.C. § 2255.’”) (quoting MantusLeva v. U.S., 287 F.3d 758, 761 (9th Cir. 2002) (citations omitted)).
21

Docket 53; Docket 74, p. 4.

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a consequence of his plea, and that his petition is timely filed as the rights expressed
in the Padilla opinion fall within the exception contained in § 2255(f)(3).22 The Padilla
decision was decided on March 31, 2011. Therefore, if Padilla meets the definition
in § 2255(f)(3), Mr. Ferron’s petition is timely.
III.

Padilla and Retroactivity

In Padilla, the United States Supreme Court held that counsel must
advise defendants of deportation consequences in order to comply with the definition
of constitutionally competent counsel outlined in Strtickland v. Washington.23 More
specifically, “[b]efore deciding whether to plead guilty, a defendant is entitled to ‘the
effective assistance of competent counsel.”24 This includes advisement on the risk
of deportation.25
The Court in Padilla makes no specific statement regarding retroactivity
of the decision. But, the Court does state that the decision “will not open the
floodgates to challenges of convictions obtained through plea bargains.”26 This
implies that the Supreme Court intended Padilla to apply retroactively.
Unfortunately, to date, there is no ruling by the Supreme Court on the issue of
22

Docket 84.

23

Padilla at 1478; 466 U.S. 668 (1984).

24

Padilla at 1480-81 (quoting McMann v. Richardson, 397 U.S. 759, 771
(1970) (parallel citations omitted).
25

Id. at 1482.

26

Id. at 1477.

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retroactivity.
Courts apply Teague v. Lang in order to determine whether a case
announces a “new rule . . . not dictated by precedent existing at the time the
defendant’s conviction became final.”27 Teague established two categories of cases:
new rules and old rules. A new rule applies retroactively for cases on collateral
review if one of two exceptions apply:
(1) the new rule places certain kinds of criminal conduct
beyond the power of the criminal law-making authority to
proscribe; or (2) the new rule is a “watershed rule[ ] of
criminal procedure” that “alter[s] our understanding of the
bedrock procedural elements that must be found to vitiate
the fairness of a particular conviction. ”28
Further, a rule is “ new ‘within the meaning of Teague if it ‘breaks new ground,’
‘imposes a new obligation on the States or the Federal Government,’ or was not
‘dictated by precedent existing at the time the defendant’s conviction became
final.’”29
Old rules apply both on direct and collateral review.30 A rule is old “if a
‘court considering the defendant’s claim at the time his conviction became final
would have felt compelled by existing precedent to conclude that the rule he seeks
27

489 U.S. 288, 301 (1989).

28

U.S. v. Orocio, 645 F.3d 630, 637 (3d Cir. 2011) (quoting Teague at 311).

29

U.S. v. Hong, No. 10-6294, 2011 WL 3805763, *5 (10th Cir. 2011) (quoting
Graham v. Collins, 506 U.S. 461, 467 (1993) (quoting Teague at 301) (parallel
citations omitted).
30

Orocio at 637 (citing Whorton v. Bockting, 549 U.S. 406, 416 (2007)).

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was required by the Constitution.’”31
When the Supreme Court overrules a previous decision, it is far easier
to determine that a new rule has been created.32 But, this evaluation is more difficult
when the Court “extends the reasoning of [its] prior cases.”33
In United States v. Bonilla, the Ninth Circuit discussed the retroactive
application of Padilla.34 The court reviewed, on direct appeal, defendant’s presentence motion to withdraw his plea after learning of the deportation consequences
it carried.35 Though Bonilla was in a different procedural posture than the current
Petition, the Circuit Court held that the lower court should have allowed the
defendant to withdraw his plea as he was not properly informed of the likelihood of
deportation prior to entering into the plea.36 Other Circuit Courts that have issued
opinions on retroactivity are split on the issue.37 District courts in the Ninth Circuit,

31

Hong at *5 (quoting O’Dell v. Netherland, 521 U.S. 151, 156 (1997) (parallel
citations omitted).
32

Id.

33

Id. (quoting Graham v. Collins, 506 U.S. 461, 467 (1993)).

34

637 F.3d 980 (9th Cir. 2011).

35

Id. at 981.

36

Id. at 986.

37

See Chaidez v. U.S., 655 F.3d 684 (7th Cir. 2011) (Padilla announced a new
rule that does not apply retroactively to prosecutions that are already final.); U.S. v.
Orocio, 645 F.3d 630 (3d Cir. 2011) (“[B]ecause Padilla followed directly from
Strickland and long-established professional norms, it is an ‘old rule’ for Teague
purposes and is retroactively applicable on collateral review.”) (citing Teague v.
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even after Bonilla, are similarly split.38
Assuming arguendo that Padilla applies retroactively, Mr. Ferron still
fails to satisfy the test for ineffective assistance of counsel as established by
Strickland.
IV.

Ineffective Assistance of Counsel Standard and Padilla

Mr. Ferron filed his Motion to Vacate pursuant to 28 U.S.C. § 2255 as
a means to challenge his conviction. The relevant portion of the statute outlines the
burden the Defendant must establish:
(a) A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that [1] the sentence was

Lane, 489 U.S. 288 (1989)); U.S. v. Hong, No. 10-6294, 2011 WL 3805763 (10th Cir.
2011) (The Supreme Court’s decision in Padilla v. Kentucky did not apply
retroactively to a case on collateral review.).
38

See Vardanyan v. Jackson, No CV10-0730-JHN (DTB), 2011 WL 7039945
(C.D.Cal. Sept. 13, 2011) (“Section 2255(f)(3) is not applicable for commencing the
limitations period because Padilla did not establish a new rule, but rather applied
Strickland to a specific set of facts.”) (citing Luna v. United States, No. 10CV1659
JLS (POR), 2010 WL 4868062, at *4 (S.D.Cal. Nov.23, 2010); U.S. v. Hurtado-Villa,
Nos. CV-10-01814-FJM (MHB), CR-08-01249-PHX-FJM, 2011 WL 4852284 (D.Ariz.
Aug. 12, 2011) (“Padilla did not create a ‘new rule,’ either procedural or
substantive.”); Song v. U.S., Nos. CV 09-5184 DOC, CR 98-0806 DOC, 2011 WL
2533184, *2, n.1 (C.D.Cal. June 27, 2011) (“The Supreme Court expressly
contemplated retroactive application when it decided Padilla.”); U.S. v. Krboyan,
Nos. 1:02-cr-05438 OWW, 1:10-cv-02016 OWW, 2011 WL 2117023, *9 (E.D.Cal.
May 27, 2011) (“Based on the Ninth Circuit’s retroactive application of Padilla in
Bonilla, Padilla applies retroactively to Petitioner’s writ of error coram nobis.”);
Bawaneh v. U.S., Nos. CV-10-7805 CAS, CR-01-1134 CAS, 2011 WL 1465775, *2
(C.D.Cal. April 18, 2011) (“[P]etitioner concedes that Padilla did not create a new
constitutional rule. Therefore, the decision in Padilla did not trigger the start of a
limitations period pursuant to § 2255(f)(3).”).
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imposed in violation of the Constitution or laws of the
United States, or [2] that the court was without jurisdiction
to impose such sentence, or [3] that the sentence was in
excess of the maximum authorized by law, or [4] is
otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or
correct the sentence.
The Defendant argues that his sentence is subject to collateral attack because he
was denied his Sixth Amendment rights to effective assistance of counsel when
determining whether to accept a plea because he was not properly advised of the
risk of deportation.
A. Ineffective Assistance of Counsel
The Sixth Amendment to the Constitution guarantees that “[i]n all
criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance
of Counsel for his defense.”39

The Sixth Amendment guarantee has two

components, namely the right to counsel’s undivided loyalty and the right to
reasonably competent counsel.40
The standard for ineffective assistance of counsel claims comes from
Strickland v. Washington.41

Strickland established a two-prong test where a

defendant must show not only that his attorney’s representation was deficient but

39

U.S. Constitution, Amendment VI.

40

See Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980); Wood v. Georgia, 450
U.S. 261, 272 (1981).
41

466 U.S. 688 (1984).

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also that the attorney’s representation prejudiced his cause.42 The defendant bears
the burden of establishing that his attorney’s performance was “so deficient that it
fell below an objective standard of reasonableness.”43
With respect to judicial scrutiny of an attorney’s performance, the court
must be “highly deferential” and “every effort [must] be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.”44 This means that a defendant must overcome the “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.”45
In order for a defendant to establish prejudice, he must demonstrate
that “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceedings would have been different.”46 A reasonable probability
is one “sufficient to undermine confidence in the outcome.”47 Elaborating on the

42

Id. at 693.

43

Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002).

44

Strickland at 689.

45

Id.; see also Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001)
(Defendant “bears the heavy burden of proving that counsel’s assistance was neither
reasonable nor the result of sound trial strategy.”).
46

Strickland at 694.

47

Id.

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threshold, Strickland states:
It is not enough for [a defendant] to show that the errors
had some conceivable effect on the outcome of the
proceedings. Virtually every act or omission of counsel
would meet that test, and not every error that conceivably
could have influenced the outcome undermines the
reliability of the result of the proceedings.48
A court may first examine whether a defendant shows sufficient prejudice prior to
engaging in an evaluation of whether counsel’s performance was deficient.49
The Supreme Court has held that the Strickland two-prong test is also
applicable in challenges to sentences pursuant to plea agreements, i.e. allegations
of erroneous plea advice.50
In the context of the Strickland standard, Padilla states that in a § 2255
petition, in order to obtain relief, “a petitioner must convince the court that a decision
to reject the plea bargain would have been rational under the circumstances.”51
V. Mr. Ferron’s Petition is Not Supported by the Record
The record from the Change of Plea Hearing and the Imposition of
Sentence Hearing is clear. Mr. Ferron would likely face deportation as a result of his
plea. His attorney, Ms. Tatter, Dr. Aron Wolf and the Court all stated this fact. And,

48

Id. at 693.

49

Id. at 697.

50

Hill v. Lockhart, 474 U.S. 52, 57 (1985).

51

Id. at 1485 (citing Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000) (parallel
citations omitted).
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Mr. Ferron acknowledged the likelihood as well.
A. Evidence in the Record
Mr. Ferron has not provided any affidavits to support his allegations in
his petition. Nonetheless, the record has ample evidence to persuade the court that
he was properly advised of the risk of deportation.
During his testimony regarding Mr. Ferron’s competence, Dr. Aron Wolf
testified that Mr. Ferron
is willing to serve the time for the charges, but the thing
that’s most focused on him – for him is his immigration
status. And he understood that the one charge that was
dropped would have mandated that he be deported, and
he wished to have at least some leeway to address
whether he will be deported in the future.52
Mr. Ferron was very concerned about the prospect of being deported. But, it is clear
that he understood that potential.

The Court stated, after explaining to the

Defendant that he had the right to go to trial, and in conjunction with explaining the
consequences of his plea, that “[b]ecause of your immigration status, there’s also a
possibility that as a consequence of pleading guilty, you would be deported.”53 The
Court asked whether Mr. Ferron understood the risk of deportation. He replied
“[y]es, Your Honor.”54

52

Docket 67, tr. 9.

53

Id. at tr. 25.

54

Id.

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At the Imposition of Sentence Hearing, Ms. Tatter explained in her
Sentencing Recommendations that the court should impose a short jail term as the
defendant would be deported, thus ensuring the safety of the community.
Specifically, she stated:
The Court should also think of the practical situation here
about rehabilitation, deterrence and public safety. This
person will be almost inevitably deported to Jamaica at an
advanced age of fifty-some years . . . and the public will be
protected because he’s going to be in ICE custody upon
his release of any sentence.55
In his allocution, Mr. Ferron stated his concern about deportation. “It’s
thirty-something years now I haven’t been to [Jamaica], and they’re going to deport
me . . . .”56
When the Court gave its sentence, Judge Sedwick stated on the record
the facts he was considering, including his concern about how Mr. Ferron would
survive upon being deported. “I’m greatly concerned, and I’m sure Mr. Ferron is,
too, about how he’s going to survive when he gets back to Jamaica.”57 Continuing
on, Judge Sedwick stated that Mr. Ferron “is an older man and he’s going back to
a country where even younger men can hardly ever find work . . . He does need to
get himself squared away, he needs to understand who he is and where he’s from

55

Docket 68, tr. 32.

56

Id. at tr. 37.

57

Id. at tr. 40-41.

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because inevitably, he’s going back to where he’s come from.”58
It is painfully clear by the statements of the parties at these hearings
that much attention was given to the issue of deportation. Mr. Ferron understood he
would be deported. He acknowledged such at the hearing. And, there was much
testimony about Mr. Ferron’s competence, so there is not a concern that he was
unable to understand what he was advised of regarding deportation. Mr. Ferron also
stated that he was satisfied with the advice he received from his attorney, casting
doubt on his allegations in this Petition.59
The Petition suggests that Mr. Ferron was led to believe he would not
be deported by a statement made by the Government at Sentencing. Crandon
Randell, Assistant United States Attorney stated: “[Mr. Ferron] managed to thwart
deportation once, no reason to think he can’t do it again.”60 But, Petitioner takes this
statement out of context. Mr. Randell was referencing Mr. Ferron’s re-entry following
his initial deportation in 1973-1974. Mr. Ferron illegally re-entered the United States
and “thwarted” deportation. It is clear that Mr. Randell was not supposing that Mr.
Ferron would not be deported following his sentencing.
Mr. Ferron was deemed competent to enter a plea.

Mr. Ferron

acknowledged the risk of deportation associated with his plea. The Court and

58

Id. at 41.

59

Docket 67, tr. 22.

60

Docket 68, tr. 34.

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counsel for Mr. Ferron stated on the record that he would likely face deportation.
There is no evidence in the record that Mr. Ferron was not advised that he would
likely be deported as a result of his plea.
B. Evidentiary Hearing
At Docket 56 the assigned District Judge instructed the parties to file
requests for an evidentiary hearing within 30 days after the date the United States
attorney filed an answer. Neither party requested an evidentiary hearing. And, Mr.
Ferron has not filed any affidavits in support of his Petition.
In habeas proceedings, a defendant is entitled to an evidentiary hearing
unless “the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.”61 Moreover, “vague, palpably incredible, or frivolous
allegations warrant summary dismissal of a section 2255 motion.”62
The district court may deny a § 2255 motion without holding an
evidentiary hearing if “(1) the petitioner’s allegations, accepted as true, would not
entitled him to relief; or (2) the allegations cannot be accepted as true because they
are contradicted by the record, inherently incredible, or allege conclusions rather

61

28 U.S.C. 2255; see also Frazer v. United States, 18 F.3d 778, 780 (9th Cir.
1994); and see BRIAN R. MEANS, FEDERAL HABEAS MANUAL: A GUIDE TO FEDERAL
HABEAS CORPUS LITIGATION § 4:2 (West ed., 2010) (quoting 28 U.S.C.A. § 2255(b)).
62

DHILLON KHOSLA, 28 U.S.C. § 2255 CHECKLIST/UPDATED SUPPLEMENT TO
HABEAS CORPUS OUTLINE p. 5 (2005) (citing Frazer at 781).
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than statements of fact.”63 The Ninth Circuit has held that a petitioner’s speculation
is not an adequate basis for an evidentiary hearing.64

Similarly, “conclusory

allegations unsupported by specific facts are insufficient.”65
The record from the Change of Plea hearing and the Imposition of
Sentence hearing directly contradict Mr. Ferron’s allegation that he did not
understand that he would likely be deported as a result of his plea agreement. This
satisfies the second prong cited above as the allegations made by Mr. Ferron in his
Petition are directly contradicted by the record. It is therefore not necessary to hold
an evidentiary hearing in this matter.
VI. Analysis
Strickland’s two-prong test requires that a defendant show not only that
his attorney’s representation was deficient but also that the attorney’s representation
prejudiced his cause.66 In cases where Padilla is implicated, a defendant must also
prove that had the defendant been properly advised regarding deportation, he would

63

Id. (citing Sanders v. U.S., 341 F.3d 720, 722 (8th Cir. 2003)).

64

FEDERAL HABEAS MANUAL § 4:17 (citing U.S. v. Zuno-Arce, 209 F.3d 1095,
1103 (9th Cir. 2000)).
65

Id. (citing Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006), cert.
denied, 127 S.Ct. 1877 (U.S. 2007) (“bald assertions and conclusory allegations do
not provide sufficient ground to warrant requiring . . . an evidentiary hearing.”);
Williams v. Woodford, 384 F.3d 567, 588 (9th Cir. 2004) (unsworn, conclusory
assertion by counsel unsupported by proof does not provide a basis for an
evidentiary hearing)).
66

Id. at 693.

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have rejected his plea bargain.67 But here, Mr. Ferron was properly advised of the
deportation consequences of his plea and he accepted those risks and entered a
plea. He was advised multiple times of deportation consequences. He was advised
in a way that satisfies the requirement laid out in Padilla. Therefore, the Court need
not address the retroactivity of Padilla.
VII. Conclusion
Even assuming Padilla is retroactively applicable for cases on collateral
review, Mr. Ferron is not entitled to relief. The record is clear. Mr. Ferron was
properly advised, multiple times, of the deportation consequences of his plea
agreement. He acknowledged such on the record. Mr. Ferron fails to meet either
prong of Strickland and his attorney’s performance satisfies the requirements in
Padilla.

The Magistrate Judge therefore recommends the court DENY MR.

FERRON’S MOTION TO VACATE HIS SENTENCE. It is so recommended.

DATED this

26th

day of January, 2012, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge
//
//
67

See Padilla at 1485 (citing Roe at 480) (parallel citations omitted).

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Pursuant to Rule 59(b)(3), Federal Rules of Criminal Procedure, any
objections will be considered by the District Court Judge who will accept, reject,
or modify the recommendation, or resubmit the matter to the Magistrate Judge for
additional consideration and recommendation. Failure to object in accordance with
this rule waives a party's right to review.
Objections to this report and recommendation shall be served and filed
no later than CLOSE OF BUSINESS, Friday, February 10, 2012. Responses to
objections are due by CLOSE OF BUSINESS, on Friday, February 24, 2012.
Objections and responses shall not exceed 5 pages in length, and shall not merely
reargue positions presented in motion papers. Rather, objections and responses
shall specifically designate the findings or recommendations objected to, the basis
of the objection, and the points and authorities in support.

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